28 USC 1491 - Claims against United States generally; actions involving Tennessee Valley Authority

1 See References in Text note below.

of that Act.

2 So in original. Probably should be “United”.

States Court of Federal Claims and the district courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. Both the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.

Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., § 250(1) (Mar. 3, 1911, ch. 231; § 145, 36 Stat. 1136).

District courts are given concurrent jurisdiction of certain claims against the United States under section 1346 of this title. (See also reviser’s note under that section and section 1621 of this title relating to jurisdiction of the Tax Court.)

The proviso in section 250(1) of title 28, U.S.C., 1940 ed., relating to claims growing out of the Civil War, commonly known as “war claims,” and other claims which had been reported adversely before March 3, 1887 by any court, department, or commission authorized to determine them, were omitted as obsolete.

The exception in section 250(1) of title 28, U.S.C., 1940 ed., as to pension claims appears in section 1501 of this title.

Words “in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States were suable” were omitted as unnecessary since the Court of Claims manifestly, under this section will determine whether a petition against the United States states a cause of action. In any event, the Court of Claims has no admiralty jurisdiction, but the Suits in Admiralty Act, sections 741–752 of title 46, U.S.C., 1940 ed., Shipping, vests exclusive jurisdiction over suits in admiralty against the United States in the district courts. Sanday & Co. v. U.S., 1932, 76 Ct.Cl. 370.

For additional provisions respecting jurisdiction of the court of claims in war contract settlement cases see section 114span of Title 41, U.S.C., 1940 ed., Public Contracts.

Changes were made in phraseology.

Editorial Notes

References in Text

Section 6 of the Contract Disputes Act of 1978, referred to in subsec. (a)(2), was classified to section 605 of former Title 41, Public Contracts, and was repealed and restated as subsecs. (a) to (c)(1) and (d) to (h) of section 7103 of Title 41, Public Contracts, by Puspan. L. 111–350, §§ 3, 7(span), Jan. 4, 2011, 124 Stat. 3677, 3855.

The Tennessee Valley Authority Act of 1933, referred to in subsec. (c), is act May 18, 1933, ch. 32, 48 Stat. 58, which is classified generally to chapter 12A (§ 831 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see section 831 of Title 16 and Tables.

Amendments

2011—Subsec. (a)(2). Puspan. L. 111–350 substituted “section 7104(span)(1) of title 41” for “section 10(a)(1) of the Contract Disputes Act of 1978”.

Subsec. (span)(6). Puspan. L. 112–81 added par. (6).

2008—Subsec. (span)(5). Puspan. L. 110–417 struck out par. (5), as added by Puspan. L. 110–161, which read as follows: “If a private sector interested party commences an action described in paragraph (1) in the case of a public-private competition conducted under Office of Management and Budget Circular A–76 regarding performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A–76, then an official or person described in section 3551(2)(B) of title 31 shall be entitled to intervene in that action.”

Puspan. L. 110–181 added par. (5).

2007—Subsec. (span)(5). Puspan. L. 110–161 added par. (5).

1996—Subsec. (a)(3). Puspan. L. 104–320, § 12(a)(2), struck out par. (3) which read as follows: “To afford complete relief on any contract claim brought before the contract is awarded, the court shall have exclusive jurisdiction to grant declaratory judgments and such equitable and extraordinary relief as it deems proper, including but not limited to injunctive relief. In exercising this jurisdiction, the court shall give due regard to the interests of national defense and national security.”

Subsecs. (span), (c). Puspan. L. 104–320, § 12(a)(1), (3), added subsec. (span) and redesignated former subsec. (span) as (c).

1992—Subsec. (a)(1). Puspan. L. 102–572, § 902(a)(1), substituted “United States Court of Federal Claims” for “United States Claims Court”.

Subsec. (a)(2). Puspan. L. 102–572, § 907(span)(1), inserted before period at end “, including a dispute concerning termination of a contract, rights in tangible or intangible property, compliance with cost accounting standards, and other nonmonetary disputes on which a decision of the contracting officer has been issued under section 6 of that Act”.

Puspan. L. 102–572, § 902(a)(2), substituted “Court of Federal Claims” for “Claims Court”.

Subsec. (span). Puspan. L. 102–572, § 902(a)(1), substituted “United States Court of Federal Claims” for “United States Claims Court”.

1982—Subsec. (a)(1). Puspan. L. 97–164 designated first two sentences of existing first undesignated paragraph as subsec. (a)(1) and substituted “United States Claims Court” for “Court of Claims”.

Subsec. (a)(2). Puspan. L. 97–164 designated third, fourth, and fifth sentences of existing first undesignated paragraph as par. (2) and substituted “The Claims Court” for “The Court of Claims” and “arising under section 10(a)(1) of the Contract Disputes Act of 1978” for “arising under the Contract Disputes Act of 1978”.

Subsec. (a)(3). Puspan. L. 97–164 added par. (3).

Subsec. (span). Puspan. L. 97–164 designated existing second undesignated paragraph as subsec. (span) and substituted “United States Claims Court” for “Court of Claims”, “conduct of, the Tennessee Valley Authority, or” for “actions of, the Tennessee Valley Authority, nor”, “Tennessee Valley Authority Act of 1933” for “Tennessee Valley Authority Act of 1933, as amended,”, and “actions by or against the Authority” for “suits by or against the Authority”.

1980—Puspan. L. 96–417 substituted “Court of Claims of any civil action within the exclusive jurisdiction of the Court of International Trade, or of any action” for “in suits” in second par.

1978—Puspan. L. 95–563 provided that the Court of Claims would have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under the Contract Disputes Act of 1978.

1972—Puspan. L. 92–415 inserted provisions authorizing the court to issue orders directing restoration to office or position, placement in appropriate duty or retirement status and correction of applicable records and to issue such orders to any United States official and to remand appropriate matters to administrative and executive bodies with proper directions.

1970—Puspan. L. 91–350 specified that the term “express or implied contracts with the United States” includes express or implied contracts with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration.

1954—Act Sept. 3, 1954, inserted “; actions involving Tennessee Valley Authority” in section catchline and altered the form of first par. to spell out the general jurisdiction of the Court in paragraph form rather than as clauses of the par.

1953—Act July 28, 1953, substituted “United States Court of Claims” for “Court of Claims” near beginning of section, and inserted last par.

Statutory Notes and Related Subsidiaries

Effective Date of 2011 Amendment

Puspan. L. 112–81, div. A, title VIII, § 861(span), Dec. 31, 2011, 125 Stat. 1521, provided that: “The amendment made by subsection (a) [amending this section] shall apply to any cause of action filed on or after the first day of the first month beginning more than 30 days after the date of the enactment of this Act [Dec. 31, 2011].”

Effective Date of 2008 Amendment

Puspan. L. 110–181, div. A, title III, § 326(d), Jan. 28, 2008, 122 Stat. 63, provided that: “Subparagraph (B) of section 3551(2) of title 31, United States Code (as added by subsection (a)), and paragraph (5) of section 1491(span) of title 28, United States Code (as added by subsection (c)), shall apply to—

“(1) a protest or civil action that challenges final selection of the source of performance of an activity or function of a Federal agency that is made pursuant to a study initiated under Office of Management and Budget Circular A–76 on or after January 1, 2004; and

“(2) any other protest or civil action that relates to a public-private competition initiated under Office of Management and Budget Circular A–76, or to a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A–76, on or after the date of the enactment of this Act [Jan. 28, 2008].”

Effective Date of 2007 Amendment

Paragraph (5) of subsec. (span) of this section applicable to protests and civil actions that challenge final selections of sources of performance of an activity or function of a Federal agency that are made pursuant to studies initiated under Office of Management and Budget Circular A–76 on or after Jan. 1, 2004; and to any other protests and civil actions that relate to public-private competitions initiated under Office of Management and Budget Circular A–76, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A–76, on or after Dec. 26, 2007, see section 739(c)(3) of Puspan. L. 110–161, set out as a note under section 501 of Title 31, Money and Finance.

Amendment by Puspan. L. 110–161 applicable with respect to fiscal year 2008 and each succeeding fiscal year, see section 739(e) of Puspan. L. 110–161, set out as a note under section 501 of Title 31, Money and Finance.

Effective Date of 1996 Amendment

Puspan. L. 104–320, § 12(span), Oct. 19, 1996, 110 Stat. 3875, provided that: “This section [amending this section and section 3556 of Title 31, Money and Finance, and enacting provisions set out as notes under this section and section 3556 of Title 31] and the amendments made by this section shall take effect on December 31, 1996 and shall apply to all actions filed on or after that date.”

Effective Date of 1992 Amendment

Amendment by section 902(a) of Puspan. L. 102–572 effective Oct. 29, 1992, see section 911 of Puspan. L. 102–572, set out as a note under section 171 of this title.

Puspan. L. 102–572, title IX, § 907(span)(2), Oct. 29, 1992, 106 Stat. 4519, provided that: “The amendment made by paragraph (1) [amending this section] shall be effective with respect to all actions filed before, on, or after the date of the enactment of this Act [Oct. 29, 1992], except for those actions which, before such date of enactment, have been the subject of—

“(A) a final judgment of the United States Claims Court, if the time for appeal of that judgment has expired without an appeal having been filed, or

“(B) a final judgment of the Court of Appeals for the Federal Circuit.”

Effective Date of 1982 Amendment

Amendment by Puspan. L. 97–164 effective Oct. 1, 1982, see section 402 of Puspan. L. 97–164, set out as a note under section 171 of this title.

Effective Date of 1980 Amendment

Amendment by Puspan. L. 96–417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Puspan. L. 96–417, set out as a note under section 251 of this title.

Effective Date of 1978 Amendment

Amendment by Puspan. L. 95–563 effective with respect to contracts entered into 120 days after Nov. 1, 1978, and, at the election of the contractor, with respect to any claim pending at such time before the contracting officer or initiated thereafter, see section 16 of Puspan. L. 95–563, Nov. 1, 1978, 92 Stat. 2391, formerly set out as an Effective Date note under section 601 of former Title 41, Public Contracts.

Effective Date of 1972 Amendment

Puspan. L. 92–415, § 2, Aug. 29, 1972, 86 Stat. 652, provided that: “This Act [amending this section] shall be applicable to all judicial proceedings pending on or instituted after the date of its enactment [Aug. 29, 1972].”

Effective Date of 1970 Amendment

Amendment by Puspan. L. 91–350 applicable to claims and civil actions dismissed before or pending on July 23, 1970, if the claim or civil action was based upon a transaction, omission, or breach that occurred not more than six years prior to July 23, 1970, notwithstanding a determination or judgment made prior to July 23, 1970, that the United States district courts or the United States Court of Claims did not have jurisdiction to entertain a suit on an express or implied contract with a nonappropriated fund instrumentality of the United States, see section 2 of Puspan. L. 91–350, set out as a note under section 1346 of this title.

Savings Provision

Puspan. L. 104–320, § 12(e), Oct. 19, 1996, 110 Stat. 3875, provided that:

“(1)Orders.—A termination under subsection (d) [set out below] shall not terminate the effectiveness of orders that have been issued by a court in connection with an action within the jurisdiction of that court on or before December 31, 2000. Such orders shall continue in effect according to their terms until modified, terminated, superseded, set aside, or revoked by a court of competent jurisdiction or by operation of law.

“(2)Proceedings and applications.—

(A) a termination under subsection (d) shall not affect the jurisdiction of a court of the United States to continue with any proceeding that is pending before the court on December 31, 2000.

“(B) Orders may be issued in any such proceeding, appeals may be taken therefrom, and payments may be made pursuant to such orders, as if such termination had not occurred. An order issued in any such proceeding shall continue in effect until modified, terminated, superseded, set aside, or revoked by a court of competent jurisdiction or by operation of law.

“(C) Nothing in this paragraph prohibits the discontinuance or modification of any such proceeding under the same terms and conditions and to the same extent that proceeding could have been discontinued or modified absent such termination.”

Sunset Provision

Puspan. L. 104–320, § 12(d), Oct. 19, 1996, 110 Stat. 3875, provided that: “The jurisdiction of the district courts of the United States over the actions described in section 1491(span)(1) of title 28, United States Code (as amended by subsection (a) of this section) shall terminate on January 1, 2001 unless extended by Congress. The savings provisions in subsection (e) [set out above] shall apply if the bid protest jurisdiction of the district courts of the United States terminates under this subsection.”

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(span), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, set out as a note under section 542 of Title 6.

Study on Concurrent Jurisdiction

Puspan. L. 104–320, § 12(c), Oct. 19, 1996, 110 Stat. 3875, required that, no earlier than 2 years after Dec. 31, 1996, the General Accounting Office was to undertake a study regarding the concurrent jurisdiction of the district courts of the United States and the Court of Federal Claims over bid protests to determine whether concurrent jurisdiction was necessary, which study was to be completed no later than Dec. 31, 1999, and was to specifically consider the effect of any proposed change on the ability of small businesses to challenge violations of Federal procurement law.